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Exhibit
10.16
THE SECURITIES REPRESENTED THIS WARRANT
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW
TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO
SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT AN EFFECTIVE
REGISTRATION THEREOF OR AN OPINION OF COUNSEL IN A FORM
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
WARRANT TO PURCHASE
STOCK
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| Corporation: |
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ALPHA
INNOTECH CORP., a Delaware corporation |
| Number of
Shares: |
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| Class of
Stock: |
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Common |
| Initial
Exercise Price: |
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$0.80 |
| Issue
Date: |
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May 9,
2008 |
| Expiration
Date: |
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October
31, 2014 |
THIS WARRANT CERTIFIES THAT
_______________ or registered assignee (“Holder”) is
entitled to purchase the number of fully paid and nonassessable
shares (the “Shares”) of Common Stock of ALPHA INNOTECH
CORP. (the “Company”), in the number, at the price, and
for the term specified above. If any amount is outstanding on
December 31, 2008 under the Loan Agreement dated as of the
Issue Date (the “Loan Agreement”), the number of shares
that may be acquired under this Warrant shall automatically
increase by a number that is 7.5% of such outstanding balance
divided by the Exercise Price. If any amount is outstanding on
April 30, 2009 under the Loan Agreement, the number of Shares
that may be acquired under this Warrant shall automatically
increase by a number that is 7.5% of such outstanding balance
divided by the Exercise Price. If any amount is outstanding under
the Loan Agreement after the occurrence of an Event of Default, the
number of Shares that may be acquired under this Warrant shall
increase by 50,000 on the day after the Maturity Date, and by
100,000 on each 30 th day
thereafter for so long as any amount remains outstanding under the
Loan Agreement.
ARTICLE 1. EXERCISE
1.1 Method of Exercise
. Holder may exercise this Warrant by delivering this Warrant and a
duly executed Notice of Exercise in substantially the form attached
as Appendix 1 to the principal office of the Company. Unless Holder
is exercising the conversion right set forth in Section 1.2,
Holder shall also deliver to the Company a check for the aggregate
Warrant Price for the Shares being purchased.
1.2 Conversion Right .
In lieu of exercising this Warrant as specified in
Section 1.1, Holder may from time to time convert this
Warrant, in whole or in part, into a number of Shares computed
using the following formula:
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| Where |
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X = The number of shares of common stock to be issued
to the Registered Holder. |
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Y = The
number of shares of common stock purchasable under this Warrant (at
the date of such calculation). |
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A = The
fair market value of one share of common stock (at the date of such
calculation). |
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B = The
Exercise Price (as adjusted to the date of such calculation). The
fair market value of the Shares shall be determined pursuant to
Section 1.3. |
1.3 Fair Market Value
. If the Company’s common stock is traded regularly in a
public market, the fair market value of the Shares shall be the
closing price of the Shares reported for the business day
immediately before Holder delivers its Notice of Exercise to the
Company. If the Company’s common stock is actively traded
over-the-counter, the fair market value shall be deemed to be the
average of the closing bid or sales price (whichever is applicable)
over the 30 day period ending three days before the date of
calculation. If the Company’s common stock is not regularly
traded in a public market, the Board of Directors of the Company
shall determine fair market value in its reasonable good faith
judgment.
1.4 Delivery of
Certificate and New Warrant . Promptly after Holder exercises
or converts this Warrant, the Company shall deliver to Holder
certificates for the Shares acquired and, if this Warrant has not
been fully exercised or converted and has not expired, a new
Warrant representing the Shares not so acquired.
1.5 Replacement of
Warrants . On receipt of evidence reasonably satisfactory to
the Company of the loss, theft, destruction or mutilation of this
Warrant and, in the case of loss, theft or destruction, on delivery
of an indemnity agreement reasonably satisfactory in form and
amount to the Company or, in the case of mutilation, or surrender
and cancellation of this Warrant, the Company at its expense shall
execute and deliver, in lieu of this Warrant, a new warrant of like
tenor.
ARTICLE 2. ADJUSTMENTS TO THE
SHARES .
2.1 Stock Dividends,
Splits . If the Company declares or pays a dividend on its
Common stock payable in Common stock, or other securities,
subdivides the outstanding Common stock into a greater amount of
Common stock, then upon exercise of this Warrant, for each Share
acquired, Holder shall receive, without cost to Holder, the total
number and kind of securities to which Holder would have been
entitled had Holder owned the Shares of record as of the date the
dividend or subdivision occurred. If the Company makes any other
distribution with respect to the Shares, then in each case the
Company shall cause Holder upon exercise or conversion of this
Warrant to receive a proportionate share of that distribution as
though it were the holder of the Shares as of the record date fixed
for the determination of stockholders of the Company entitled to
receive that distribution.
2.2 Reclassification,
Exchange or Substitution . Upon any reclassification, exchange,
substitution, or other event that results in a change of the number
and/or class of the securities issuable upon exercise or conversion
of this Warrant, Holder shall be entitled to receive, upon exercise
or conversion of this Warrant, the number and kind of securities
and property that Holder would have received for the Shares if this
Warrant had been exercised immediately before such
reclassification, exchange, substitution, or other event. Upon the
closing of any sale, license, or other disposition of all or
substantially all of the assets (including intellectual property)
of the Company, or any reorganization, consolidation, or merger of
the Company where the holders of the Company’s securities
before the transaction beneficially own less than 50% of the
outstanding voting securities of the surviving entity after the
transaction, the successor entity shall assume the obligations of
this Warrant, and this Warrant thereafter shall be exercisable for
the same securities, cash and property as would be payable for the
Shares issuable upon exercise of the unexercised portion of this
Warrant as if such Shares were outstanding on the record date for
the Acquisition and subsequent closing. The Warrant Price shall be
adjusted accordingly. The Company or its successor shall promptly
issue to Holder a new Warrant for such new securities or other
property. The new Warrant shall provide for adjustments that shall
be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 2. The provisions of this
Section 2.2 shall similarly apply to successive
reclassifications, exchanges, substitutions, or other
events.
2.3 Adjustments for
Combinations, Etc . If the outstanding Shares are combined or
consolidated, by reclassification or otherwise, into a lesser
number of shares, the Warrant Price shall be proportionately
increased.
2.4 Weighted Average
Adjustment . If the Company issues additional common shares,
other than Excluded Stock, as defined below (and excluding
subdivisions, stock dividends, combinations, reclassifications and
reorganizations which are covered in Sections 2.1, 2.2 and 2.3
above) after the date of the Warrant and the consideration per
additional common share is less than the Warrant Price in effect
immediately before such issue shall be reduced, concurrently with
such Issue, to a price determined by multiplying the Warrant Price
by a fraction:
(a) the numerator of which is
the amount of Common Stock Out
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